Commonwealth Electoral Act 1918

It shall be the duty of every elector to vote at each election.

The Electoral Commissioner must, after polling day at each election, prepare for each Division a list of the names and addresses of the electors who appear to have failed to vote at the election.

Subject to subsection (4), within the period of 3 months after the polling day at each election, each DRO must:

send a penalty notice by post; or

arrange for a penalty notice to be delivered by other means;

The DRO is not required to send or deliver a penalty notice if he or she is satisfied that the elector:

is dead; or

was absent from Australia on polling day; or

was ineligible to vote at the election; or

had a valid and sufficient reason for failing to vote.

A penalty notice is a notice in an approved form notifying the elector that:

the elector appears to have failed to vote at the election; and

it is an offence to fail to vote at an election without a valid and sufficient reason for the failure; and

if the elector does not wish to have the apparent failure to vote dealt with by a court, the elector may, within the prescribed time:

if the elector did vote as required by this Act—give the DRO particulars of the circumstances of the elector’s voting; or

if the elector failed to vote—give the DRO a valid and sufficient reason for the failure; or

pay to the DRO a penalty of $20.

If an elector does not respond to a penalty notice in the manner indicated in subparagraph (5)(c)(i), (ii) or (iii), within the prescribed time, the DRO must:

send a second penalty notice by post; or

arrange for a second penalty notice to be delivered by other means;

The second penalty notice must, subject to subsection (7), have the same form as the first penalty notice but bear a notation to the effect that a previous notice in the same terms was sent to the elector but that a response in the manner indicated in subparagraph (5)(c)(i), (ii) or (iii) was not received.

The provisions of this section, other than subsection (6), apply in relation to a second penalty notice:

as if it were a penalty notice issued under subsection (3); and

as if, in the provisions of this section as so applied, references to paragraphs and subparagraphs of subsection (5) included references to those paragraphs and subparagraphs as applied by this section.

If, within the prescribed time:

an elector responds to a penalty notice in the manner indicated in subparagraph (5)(c)(i) or (ii) and the DRO to whom the response has been given is satisfied:

in the case of a response of the kind referred to in subparagraph (5)(c)(i)—that the elector did vote as required by this Act; or

in the case of a response of the kind referred to in subparagraph (5)(c)(ii)—that the reason for the failure to vote is a valid and sufficient reason; or

an elector responds to a penalty notice by paying the penalty of $20;

If the DRO to whom a response to a penalty notice has been given under subparagraph (5)(c)(i) or (ii) within the prescribed time is not satisfied:

in the case of a response of the kind referred to in subparagraph (5)(c)(i)—that the elector voted as required by this Act; or

in the case of a response of the kind referred to in subparagraph (5)(c)(ii)—that the reason for the failure to vote is a valid and sufficient reason;

the DRO is not so satisfied; and

if the elector does not wish to have the apparent failure to vote without a valid and sufficient reason for such failure dealt with by a court, he or she may, within the prescribed time, pay to the DRO a penalty of $20.

If, in response to a notice under subsection (9), the penalty of $20 is paid to the DRO within the prescribed time, proceedings against the elector for a contravention of subsection (15) are prohibited.

If an elector is unable, by reason of absence from his or her place of living or physical incapacity, to respond to a penalty notice or to a notice under subsection (9) within the prescribed time, any other elector who has a personal knowledge of the facts may, subject to the regulations, respond to the notice within that time, and such response is to be treated as compliance by the first‑mentioned elector with the notice.

The DRO must prepare a list of all electors to whom a penalty notice has been sent or delivered and note on that list in relation to each elector:

whether there has been a response to the notice; and

if there has been a response:

whether the DRO is satisfied that the elector did in fact vote or that there was a valid and sufficient reason for the elector’s failure to vote; or

whether the penalty has been paid.

The DRO must note on the list prepared under subsection (12) in relation to each elector to whom a notice under subsection (9) has been sent or delivered:

the fact that a notice has been sent or delivered under subsection (9); and

whether there has been a response to the notice; and

if there has been a response—whether the penalty has been paid.

Without limiting the circumstances that may constitute a valid and sufficient reason for not voting, the fact that an elector believes it to be part of his or her religious duty to abstain from voting constitutes a valid and sufficient reason for the failure of the elector to vote.

An elector commits an offence if the elector fails to vote at an election.

Strict liability applies to an offence against subsection (15).

For strict liability, see section 6.1 of the Criminal Code.

Subsection (15) does not apply if the elector has a valid and sufficient reason for the failure.

A defendant bears an evidential burden in relation to the matter in subsection (15B) (see subsection 13.3(3) of the Criminal Code).

An elector who makes a statement in response to a penalty notice or to a notice under subsection (9) that is, to his or her knowledge, false or misleading in a material particular commits an offence.

Proceedings for an offence against this section may be instituted only by the Electoral Commissioner or an officer authorised, in writing, for the purpose by the Electoral Commissioner.

In this section, elector does not include:

an Antarctic elector; or

an eligible overseas elector; or

an itinerant elector.

In this section, a reference to the prescribed time for a response to a penalty notice or a notice under subsection (9) is a reference to the time for response specified in the notice.